The 32 Week Baby in the Jar
I was 34 when I returned to school for a Masters Degree in Biology. It was 1987 and my twin sons were six years old. I sat in the front row for the first day of Developmental Biology. Directly in front of me was a table with jars that, from left to right, displayed embryos of increasing maturity. Farthest to the right was a 32-week fetus, preserved in formaldehyde like the others. It looked exactly like my son, the smaller of my twins, who was born at 32 weeks. I explained to my professor that I could not sit in a classroom with that display, and he declined to put it away. I dropped the class.
Abortion is complicated because there is no bright line dividing the blob of cells in the left jar on the table from the human being in the rightmost jar. And it is complicated because there are competing rights: A woman’s right to autonomy over her body, the developing child’s right to its own life, and even, possibly, a potential father’s right to the life of his potential child. Another viewpoint is seldom discussed: My other twin son, who has cerebral palsy, was in his teens when he told me he opposed abortion. I was shocked. He explained that when a woman chooses to abort a fetus she learns will be disabled, many in the disability rights community see that as genocide. So much complexity, pulling in so many directions.
No wonder abortion has been controversial for thousands of years. The 1973 Supreme Court decision in Roe vs. Wade traces through the history of abortion controversy beginning at the time of the ancient Greeks and Romans. Most of the ancient Greek thinkers agreed with abortion, but the Pythagoreans did not. Their thinking led to the language in the Hippocratic Oath that asks each new doctor to vow not to assist suicide nor perform an abortion: “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to produce abortion.” The Supreme Court decision in Roe vs. Wade traces through the various evolving positions of religious authorities about when life begins. The early Christian church carried forward the Pythagorean anti-abortion viewpoint. On the other hand, as the opinion notes, Jewish religious leaders teach that human life does not begin until birth.
In common law in the early United States, the fetus was first understood to be part of the mother until “quickening,” the moment when the first kick is felt, usually around 16-18 weeks gestation. Over the centuries, US law moved from quickening to viability, the time when a fetus can live outside the mother, as the time when a fetus gains human rights. And viability itself is shifting; my sons were at the edge of viability when they were born at 32 weeks in 1981, but babies born as early as 23 weeks can survive with modern medical intervention.
Over time, laws in the United States have gone back and forth between criminalizing and decriminalizing abortion. In part, this may be a response to medical opinion. In Roe vs. Wade, the justices point out that at one point the AMA strongly opposed abortion and called it a crime.
All these shifting opinions and analyses, all these laws over all these centuries, were promulgated by men of privilege in regulation of women’s bodies. Thus, the rights of potential fathers have implicitly been given more weight than the rights of women. From the Greek philosophers to the leaders of the AMA, very few people with a uterus have been involved in decisions about women’s bodies. Even so, in 1973 the Supreme Court found that a woman’s right to privacy under the Fourteenth Amendment extended to her control over her own body during pregnancy. And now fifty years of precedent are being challenged by a Supreme Court case involving a highly restrictive law in Mississippi.
As a sophomore in college, I had little understanding of the significance of Roe. I did not know how limited my rights had been until Roe. I hope the young women of today are paying more attention than I did in 1973. I hope that young women turned on the radio on December 1 and listened to male justices interrupt female attorneys who were representing the rights of women. I hope the young women of today understand the gyrations that were necessary to stack the Supreme Court with enough conservatives, male and female, potentially to reverse the precedents that preserve women’s rights.
The medical situation now is different than in 1973. Birth control is more readily available, and many pregnancies are prevented at home using a medication which itself was controversial when originally approved. The so-called “morning after pill” prevents implantation of the fertilized egg and is outside the scope of restrictive abortion laws. Another medication can be used for home abortions, and many women in states implementing restrictive abortion laws ordered those pills before the laws went into effect last week. But if this Supreme Court rules as predicted, 26 states are expected to ban or restrict abortions. Those restrictive laws will differentially affect women without the resources to put those pills in their medicine cabinet just in case; women who will not have the resources to travel to another state for an abortion once restrictive laws become effective.
The political situation, too, is different than in 1973. In his new book, Bad Faith: Race and the Rise of the Political Right, Randall Balmer argues that abortion replaced segregation as a more palatable issue for the religious right in the late 1970s. When faced with the prospect of losing tax exempt status for segregated schools, that the religious right made a cynical decision to pivot from segregation to abortion as a more palatable way to raise donations. Agreeing with that thesis, author and activist Frank Schaeffer wrote: “As someone who helped contribute to fomenting the lie-based Republican strategy of a “pro-life” platform back in the 1970s and ‘80s, and who has heartily repented of my and my father Francis Shaeffer’s part in making abortion the divisive ‘litmus test’ it became, it is a relief to read the hard unvarnished and unlovely truth Balmer exposes… America has paid dearly for the incursion of far-right evangelicals into her politics.” American women, in particular, have paid that price and may soon pay more.
Much of the law is about balancing rights. My right to extend my arm ends at your nose; free speech does not protect your right to yell “Fire!” in a crowded theater. Do I have the right to go unvaccinated into a public place during a pandemic, endangering others? So far, in the United States, I would have that right. But do I have the right to decide whether to carry a child within my own body? Increasingly I do not. And whilst a significant majority of Americans supports the right to abortion, it seems this is a quiet majority. We hear a great deal from advocates closer to either end of the spectrum, and see some extreme claims from each, but it seems to me that not enough of us are making our views known to our legislators. Even in “Red” states there is significant support for Roe Vs. Wade, and yet legislators enact ever more extreme legislation. Only when there is a consequence for these actions will their behavior change. The consequence should be the section of legislators who listen to their electorate. Don’t stay quiet – apathy is the enemy of liberty!
I hope you will take time to read the illuminating decision in Roe vs. Wade. And I hope you will discuss with your daughters (and granddaughters, if they are old enough) what it was like before Roe and what it could be like after Roe. And even beyond that, let us all lift up the rights of women who can’t just jump on a plane to California for a medical procedure.